Not proud: William Lietzau has said Guantanamo's detainees should have been legally designated as prisoners of war and held in Afghanistan, or taken to American prisons if charged

The Pentagon official in charge of
Guantanamo Bay has admitted that if he had his time over, he would have
argued that the notorious detention camp should never have been built.

William
Lietzau, America’s Deputy Assistant Defence Secretary for Detainee
Affairs, told The Mail on Sunday in an exclusive interview that
Guantanamo’s detainees should have been legally designated as prisoners
of war and held in Afghanistan, or if charged with crimes, taken to
prisons in America.

Mr
Lietzau – who, after three and a half years in his job, last week
announced he will be stepping down to take a private sector job in
September – added that the best way for President Obama to close
Guantanamo would be to announce that the ‘war’ with Al Qaeda is over.

Under
international law, this would end any justification for continuing to
hold prisoners who had not been charged with crimes.

Lietzau’s
words will be seen as explosive, because alone of senior officials who
serve the Obama administration in this field now, he played a key role
in creating Guantanamo under George W. Bush.

As
a senior military lawyer from early 2002 to mid-2003, he designed the
Guantanamo ‘military commissions’ – special tribunals set up to try
terrorist suspects.

These
have proved a dismal failure. Their rules have repeatedly changed, and
more than a decade after five men accused of plotting 9/11 were
captured, their case is bogged down in pre-trial hearings which have no
end in sight.

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Mr
Lietzau said that if he were advising the Bush administration now, ‘I
would argue that detainees should be kept in Afghanistan, or, if moving
them is necessary, then into the United States. If I could change one
thing in Gitmo’s past, I would have called them prisoners of war from
the beginning.’

That, he said, would have meant
their legal status would have been clear from the outset. They would
also have been covered by Common Article Three of the Geneva Convention,
which was not applied to Guantanamo detainees until a Supreme Court
decision in 2006.

Mr Lietzau played a key role in creating Guantanamo under George W. Bush

Many
legal critics say that it was America’s failure to recognise Geneva
after 9/11 which opened the road to torture and prisoner abuse. Mr
Lietzau admitted: ‘There were people who were treated badly, and this is
not something we are proud of.’

However,
he insisted such abuse had stopped, saying that some detainees had
become adept at making false allegations. ‘They know that we look into
every credible allegation, and that absorbs an enormous amount of
manpower and effort . . . With Gitmo, the amount of deceptive smoke
overwhelms the tiny amount of fire from years ago.’

He declined to be drawn as to whether
anyone should still be prosecuted and tried under the military tribunal
system he helped create.

Guards sit in a tower overlooking Guantanamo detention camp in May 2007

But
he added if any more detainees beyond the six currently facing military
commissions were to be charged, it might well be better to do this in
ordinary federal courts. ‘They have many advantages, such as the number
of offences which can be prosecuted in them.’

Lietzau
agreed that restrictions imposed by Congress on releasing or
transferring detainees have ensured that progress towards closing
Guantanamo has ground to a halt.

The
answer, he said, was take a more radical step. ‘Just like you can’t
kill your way out of this war, you’re not going to transfer your way out
of Gitmo.

‘The really hard question is, “How do you end this war?”

Once you do, we legally have to let them all go, other than those we prosecute.’

He
said Bush’s term ‘the global war on terrorism’ had suffered from a lack
of clarity, suggesting that it might be effectively limitless.

‘The
struggle with terrorism is not going to end. But we do have to end the
legally cognizable armed conflict with Al Qaeda, a specific
transnational group.

‘Arguably,
if the war aim of diminishing Al Qaeda’s ability to mount a certain
level of attack has been achieved, we could declare an end to
hostilities and return to dealing with the threat as a law enforcement
matter.’